The Texas Animal Health Commission ("commission") is adopting new entry requirements for cervids and poultry entering Texas. The TAHC adopts the repeal and replacement of §51.10 concerning entry requirements for cervids and Chronic Wasting Disease (CWD) and an amendment to §51.15, concerning entry requirements for Poultry. The rules were published for comment in the June 28, 2002 issue of the Texas Register (27 TexReg 5660). The commission did receive comments and the text was revised in response to a broad-based work group convened by the commission to obtain industry input. Because of the changes, new §51.10 will be republished. The repeal of §51.10 is adopted without changes and will not be republished. The commission did not receive any comments on §51.15 and there were no changes made, therefore the text will not be republished. The rules will become effective on September 1, 2002 which will correspond with the date in which the commission will rescind the quarantine prohibiting entry of susceptible cervid species into Texas. Entry will then be allowed in accordance with the cervid requirements adopted herein.

During the proposal process, the TAHC repealed and replaced §51.10. The TAHC inadvertently excluded the text regarding tuberculosis in new §51.10. The text regarding tuberculosis was not amended and the TAHC has put the text back into the section. The text falls under subsection (d). The current requirements regarding tuberculosis have NOT changed, they have simply been relocated elsewhere in new §51.10.

CWD is a transmissible spongiform encephalopathy (TSE) of susceptible elk and deer and it is recognized as communicable by the veterinary profession and is considered to be a threat to the Texas exotic wildlife industry and native Texas deer. There is no live animal test to determine the presence of the disease in living animals. In response to the number of reported cases found in other states, the agency is currently reproposing the requirements for entry of cervids because of CWD.

The commission has issued a quarantine prohibiting entry of the aforementioned animals and has included a statement into the entry requirement for Cervidae, Section 51.10, which denotes the fact that these requirements are not applicable if the commission has a quarantine in place which prohibits the entry of cervids or elk. That will stay in this adopted version.

The original proposed entry requirements for CWD provided that all white-tailed deer, mule deer or black-tailed deer and elk (or other cervid species determined to be susceptible to CWD) shall obtain a entry permit from the Commission. All requests for entry must be made in writing and accompanied with the information necessary to support import qualifications of the animal. This must be received by the TAHC at least ten working days prior to the entry date. The applicant must identify the herd of origin and the herd of destination. The cervids to be imported into this state shall be individually identified. There shall be a certificate of veterinary inspection completed by a federally accredited veterinarian who must certify that the cervid to be imported originates from a herd monitored for at least five (5) years under a state-approved Chronic Wasting Disease herd certification program and that there have been no clinical signs of Chronic Wasting Disease in the herd. The Commission has provided minimum standards for what is an acceptable state-approved Chronic Wasting Disease certification program and the animals intended for entry must be certified by the veterinarian as meeting those minimum standards. Those standards were taken from the draft model program that has been developed by USDA.

On June 3, 2002 the Commission hosted a CWD working group meeting with designated members from affected industry groups. A second meeting was held on July 1, 2002 with additional representation of the participants. The purpose of the meetings was to discuss the rule proposal and determine what entry standards would be most appropriate for protecting the animal health of this state while allowing animals with a certain monitored status to enter Texas. The work group included members of the Exotic Wildlife Association, Texas Deer Association, North American Elk Breeders Association (NAEBA), North American Deer Farmers Association (NADeFA), Texas Wildlife Association (TWA) as well as the United States Department of Agriculture (USDA) and Texas Parks and Wildlife (TPWD).

A number of issues were identified by the CWD working group for discussion and clarification and changes were made in response to the comments from the work group. The discussion started with trying to determine when a species became susceptible. Clarification was added which conforms to the USDA standard for confirming a positive animal. Because of the separate TPWD permitting requirement for white-tailed deer and mule deer, the commission added in language that white-tailed and mule deer must also have an entry permit from Texas Parks and Wildlife. This is in order to insure compliance with that existing requirement. There was some discussion about the ten day application requirement prior to importation. Some viewed it as meaning that the ten days must lapse before the commission would approve an acceptable permit application. The purpose of the application timing is not to require ten days before approval but to insure that the application is adequately evaluated and approved. Commission staff is currently preparing processing protocol for these applications, and due to the heightened permit review process, the ten day timeframe is to insure that the review can be accomplished. If all the permit application packet is in order and appropriate staff can make the review, the approval can be handled sooner than ten days. Clarification regarding this intent was added to the rule.

There was also discussion regarding the fact that a susceptible species had never come in contact with equipment or a premise where CWD was ever diagnosed. This is in recognition that com-mingling of animals in a herd monitoring program with animals of a unknown status or lower status will reduce the overall herd status because of the potential for exposure. Because the actual transmission vectors for this disease are unknown, any contact with a CWD exposed premise or equipment could affect the status of animals and expose them to being infected with CWD. Therefore, this statement was added to insure that the animals' monitored status is not jeopardized by having such contact that was not disclosed to the commission. Clarification was sought regarding the definition of "equipment" and "premise." The issue of premise is being addressed on the national level and the commission leaves the terms as is until a national standard is recognized.

The group discussed the permanent identification of these animals. There is a requirement in subsection (c) that there are two such permanent identifiers. That requirement was moved up into the subsection (b) in recognition of the overall importance. Also, because many times one of these forms of permanent identification is a microchip, it is necessary to have the microchip reader with the animal in order to determine compliance. That clarification was added.

The part of the proposal that engendered the most discussion related to the basic requirement that all cervids had to originate from a state approved CWD monitored herd program that had been enrolled for a minimum of five years. The five years is based upon a recognizable standard that CWD generally will not incubate in a herd for more than five years.

In the discussion, a lot of dialogue was focused on the fact that holding all states to that standard was not necessarily equitable. It was felt that nonendemic states with a program should have a lesser requirement than states which do not have such programs. This seems appropriate because of the fact that animals from these states posed a reduced risk. As such, the commission will allow entry of animals that originate from a state approved CWD monitored herd program that had been enrolled for a minimum of three years.

Regarding states which did not have a CWD monitoring program and had not disclosed a positive animal but where a herd owner maintained an overall animal health monitoring program, the discussion was that susceptible species could not meet the entry requirements because they did not have a state sponsored program. In recognition of that fact, the commission will allow entry for animals from that state where complete herd records have been maintained for five years which show that there is overall animal health monitoring being achieved. Complete documents to support such an application request include at a minimum, but are not limited to, complete and detailed herd inventories, records of deaths, laboratory results, sales and purchase receipts.

Lastly, there are those states which have disclosed positive CWD animals and animals from those states must meet the entry requirements of originating from a herd that has been in a state approved complete herd monitoring program for at least five years.

Clarification was made to a number of the acceptable state authorized monitoring standards, in subsection (c), to clearly identify those requirements. Since an acceptable state program should be aimed at limiting contact with susceptible species in preventing the ingress and egress of wildlife, that term was added.

Regarding appropriate surveillance of susceptible cervid deaths, an acceptable percentage for surveillance of commercial slaughter and shooter operations was discussed. The commission adds that an adequate standard of surveillance for such operations is a minimum of ten percent.

Regarding a quality sampling program or protocol, the commission added language to denote the current standard for CWD diagnosis. Regarding the commingling of animals, the acceptable national standard, as followed by the commission for its own CWD Monitored herd program, when animals of different status are commingled, the overall herd status reverts to the lowest status of the commingled animal. That explanation was added to clarify the issue as well as to note that such commingling at a market will also affect the animal's overall status.

In creating these classification of states, the commission would note that in case of unusual circumstances or individual hardship, the executive director may vary or waive any provisions of commission rules provided such waiver is not in conflict with sound epidemiological principles. Individual hardship will commonly mean unforeseen circumstances that affect the owner or the owner's operation and are beyond the owner's control. Any waiver or variance from agency rule will be documented and presented to the commission at the next scheduled meeting. This is found in Section 59.2 of the commission rules.

The commission also received a written comment requesting that the proposal be reduced from a five year monitored herd to three years. The commission agrees to the extent in making that change for states with monitoring programs and where CWD has not been disclosed.

The commission received another comment letter, directed to Commissioner Wood, which noted that the rule makes a distinction for states which have had CWD positives. The commentator stated concern that elk from "non-CWD states" can originate from a state with CWD and, therefore, the five years in a monitored program should be applied to all states. The commission recognizes the concern but believes that because all animals coming into this state must come from some type of monitored herd which has had that animal for the necessary time to meet the status, it will be protective. The commentator also addressed what qualifies as a CWD monitoring program. The comment is regarding the participation of herds from states with no state sanctioned program, but the producer has pursued a good faith effort. The commission realizes that some producers from states without a program have pursued a self-styled program which is why the commission allows for animals from those states to enter with the appropriate documents to demonstrate compliance with such a program. The commentator then made comments regarding intrastate movement and a mandatory testing program for such transfers. The commission appreciates the comment but notes that such actions are beyond this particular rule which is limited to interstate movement into Texas. Lastly, the commentator provides editorial comment that the commingling of these types of animals seems to be a major way to spread the disease.

This commission also proposed new requirements for poultry entering Texas. Sections 51.15 contains new entry requirements for Poultry based on national, as well as Texas' concern, for Avian Influenza. The commission did not receive any comments and nothing was changed from the proposal.

An infectious, contagious, but low pathogenic avian influenza virus, has been detected in recent months in several states that could or might export live poultry and poultry products into Texas. Avian influenza subtypes H5 and H7 are of particular concern due to their potential for developing into highly pathogenic forms of the disease with massive molting in the avian populations resulting in adverse trading sanctions for not only Texas but the entire United States poultry industry. Avian influenza is contagious and spreads rapidly. The normal movement of poultry and poultry products from any state in which avian influenza virus is present and spreading may pose a major and direct threat to Texas poultry. Therefore, the Commission proposed entry requirements for the importation of live poultry and poultry products into the state to substantially reduce the introduction of this contagious and infectious disease in this State.

Those requirements are established to manage the risk to the Texas poultry industry regarding Avian Influenza. Live domestic poultry, except those entering for slaughter and processing at a slaughter facility owned or operated by the shipper of the poultry entering, may enter Texas if they meet one of the three established set of criteria whereby the origin flock has been shown to test negative for Avian Influenza. Live domestic poultry from states affected with Avian Influenza may enter Texas for slaughter and processing only when a minimum number of birds have tested serologically negative for Avian Influenza within 72 hours of entry, and specific written permission has been granted.

The repeal is adopted under the following statutory authority as found in Chapter 161 of the Texas Agriculture Code. The commission is vested by statute, Section 161.041 (a), with the requirement to protect all livestock, domestic animals, and domestic fowl from disease. The commission is authorized, by Section 161.041 (b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock. If the commission determines that a disease listed in Section 161.041 of this code or an agent of transmission of one of those diseases exists in a place in this state among livestock, or that livestock are exposed to one of those diseases or an agent of transmission of one of those diseases, the commission shall establish a quarantine on the affected animals or on the affected place. That is found in Section 161.061.

Section 161.081, regarding the "Importation of Animals" provides that the commission by rule may regulate the movement, including movement by a railroad company or other common carrier, of livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl into this state from another state, territory, or country. Furthermore, the commission by rule may provide the method for inspecting and testing animals before and after entry into this state. Also, the commission by rule may provide for the issuance and form of health certificates and entry permits. The rules may include standards for determining which veterinarians of this state, other states, and departments of the federal government are authorized to issue the certificates or permits.

As a control measure, the commission by rule may regulate the movement of animals. The commission may restrict the intrastate movement of animals even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. That is found in Section 161.054. An agent of the commission is entitled to stop and inspect a shipment of animals or animal products being transported in this state in order to determine if the shipment originated from a quarantined area or herd, or determine if the shipment presents a danger to the public health or livestock industry through insect infestation or through a communicable or noncommunicable disease. That authority is found in Section 161.048.

Section 161.005 provides that the commission may authorize the executive director or another employee to sign written instruments on behalf of the commission. A written instrument, including a quarantine or written notice, signed under that authority has the same force and effect as if signed by the entire commission.

Section 161.061 provides that if the commission determines that a disease listed in Section 161.041 of this code or an agency of transmission of one of those diseases exists in a place in this state among livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl, or that livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl are exposed to one of those diseases or an agency of transmission of one of those diseases, the commission shall establish a quarantine on the affected animals or on the affected place.